Michael Barone has an excellent essay on what the partial dissent in Wal-Mart v Dukes says about how businesses should be run. As someone who practices a lot of class action defense, my main interest in the case* was the procedural aspects, including the point on which the Court was unanimous: you can’t use Rule 23(b)(2)’s mandatory, no-opt-out class action device and “Trial by Formula” for suits seeking individual damages. But Barone focuses on the real fissure that led to the 5-4 split on whether the case presented common, class-wide issues – the fact that Wal-Mart delegates discretion over personnel decisions down to the local store level and holds managers accountable simply for results – and how the dissent’s approach would spell the end of that entire management style. This feeds into one of Barone’s larger points: so much of “progressivism” is, for all its emotional hostility to big business, fundamentally dependent on an economy and society in which decisions are made on a nationwide basis by large, centralized institutions like big corporations, the federal government and large labor unions. Defined-benefit pension plans, nationwide class actions, a massively complex corporate tax code, volumes upon volumes of federal regulations – all these things are spectacularly ill-suited to addressing a decentralized world in which even people connected to large institutions are genuinely empowered at the local level, to say nothing of their poor fit with smaller businesses that lack the economies of scale to cope with byzantine federal regulatory demands, rent-seeking plaintiffs lawyers and long-term pension and health care costs for current employees.
* – Disclaimer: My firm was involved in the case, this post is solely my own opinion, etc.